US and UK have history of mass surveillance

Britain and its allies have been secretly harvesting personal data since World War I. However, the latest leaks from whistle-blower Edward Snowden show that as states race to keep up with technology, they risk crossing ever more ethical and legal boundaries

By Peter Beaumont / The Observer, LONDON

Even before that project was completed, the NSA was already experimenting with how to gain access to the cables, efforts that would lead to the US making its first attempts to bug one in the mid-1990s with an underwater vehicle.

Now, the documents seem to suggest, access is achieved through some degree of cooperation — voluntary or otherwise — from the companies operating the cables or the stations at which they come into the country. In addition to confirming details of how the partnership functions, the latest disclosures from Snowden also describe in detail what appears to be one of its latest iterations — Project Tempora — initiated about four years ago.

The direct descendent of earlier UK-US treaty programs, Project Tempora’s purpose remains the hoovering up of the largest amount of signals intelligence, principally in the form of metadata. Then, as now, it appears the priorities are not only related to national security, but also economic advantage — interventions which can be justified under UK law by reference to the ill-defined notion of “economic well-being.”

In one sense, GCHQ is simply trying to keep up with the dizzying pace of technological development in recent decades. As the most recent batch of leaked documents has made clear, interception, like drugs-testing in sport, has tended to lag one step behind technology.

“It is becoming increasingly difficult for GCHQ,” the authors of one memo write, “to acquire the rich sources of traffic needed to enable our support to partners within HMG [Her Majesty’s government], the armed forces and overseas.”

However, the dangers lie in the various legal and ethical thresholds being crossed in the race to catch up with the proliferating forms of communication. According to the leaked Snowden documents, the latest attempts to improve interception of Internet communications began in earnest in 2007. The first experimental project was run at GCHQ’s outpost at Bude in Cornwall, southwest England.

Within two years it would be judged enough of a success to allow analysts from the NSA to have access to the new project, which by 2011 would be capturing and producing more intelligence data in the UK than the NSA did in the US.

Other documents underline how the decades-old intelligence arrangement has worked, not least how within the UK-US treaty different roles have been subcontracted to partners for both practical and regulatory reasons.

Such potential subcontracting has long been at the heart of international legal concerns over how surveillance material is shared between the “Five Eyes.” The suspicion is that individual states within the agreement can produce material for partners that might be illegal to gather in the other collaborating states, including the US.

Shami Chakrabarti, the director of Liberty, said on Saturday: “The big point we should recognize is that states tend to have a broader license to snoop abroad and a tighter one at home. What we are seeing is states’ ability to subcontract their dirty work to others.”

Then there is the question of oversight. The UK government claims that the interception in such a broad fashion is authorized by ministers under at least 100 certificates issued under section 8(4) of the Regulation of Investigatory Powers Act (RIPA), which allows sweeping and indiscriminate trawls of data.